The opinion of the court was delivered by: WERKER
Defendants Buckle, Schaller and McGrath have moved to suppress evidence seized from them on the evening of January 31, 1978. These defendants previously moved to suppress the same evidence prior to indictment under Rule 41(e) before Judge Lasker. He denied their motion in a nine page opinion, United States v. McGrath et al. 448 F. Supp. 1338 (S.D.N.Y.1978).
Briefly summarized, the facts as found by Judge Lasker are as follows. Drug Enforcement Administration ("DEA") agents arrested a man on January 30, 1978 who possessed approximately 20 pounds of marijuana. He agreed to cooperate with the agents and informed them that one Jack Schaller was going to transport 1100 pounds of marijuana from Hurley, New York to New York City. The informer provided other details such as a description of the vehicle to be used, its registration number, and the route to be followed.
On January 31, 1978 the agents and the state police positioned themselves on the New York Thruway, spotted the previously described pickup truck at 2 p.m. and followed it. The truck stopped at a Volkswagen dealership and was joined by a Volkswagen auto. The agents checked the registration numbers and learned that James McGrath owned the pickup truck and John H. Schaller the auto. Both vehicles proceeded to Schaller's residence, arriving at 5 p.m. Police in aircraft surveilled the car and truck while DEA agents and ground police waited at the end of Schaller's driveway for the truck, expected to contain marijuana, to depart for New York City. When the truck left the Schaller residence around 9 p.m. the police stopped it on the public road, forced Schaller and the driver out of the truck, and searched them and the locked camper that was loaded upon the rear of the truck. Almost 700 pounds of marijuana were discovered in the camper. Schaller's briefcase containing books and records was also seized from under the front passenger seat of the truck.
After the above transpired, a warrant was obtained to search the Schaller property, including the barn, house and any vehicles on the land. Affidavits in support of that warrant were prepared during the period when the agents and police were awaiting departure of the truck from the property. When Schaller's residence was searched, various records, ledgers, notebooks, cash, guns and approximately 3300 pounds of marijuana were discovered.
Arguing that the police had ample time from 2 p.m. until 9 p.m. to obtain a warrant to search the pickup truck, defendants sought suppression of the truck's contents. They also moved to suppress all items seized from Schaller's property as fruits of a prior illegal search since the warrant was secured based upon evidence seized from the truck. Judge Lasker, Citing Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), found the facts to resemble those of the "automobile exception" cases and sustained the search of the camper. He also rejected defendant's contention that, under United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), the briefcase was impermissibly searched. As a consequence of these findings the search of the Schaller residence pursuant to the warrant was also upheld. These conclusions were reached without the necessity of an evidentiary hearing as to whether probable cause existed to believe the truck to contain contraband. Such a hearing, the court noted, would have been superfluous since the undisputed facts provided evidence that the informer was reliable and was a participant in the instant enterprise, and since the description given by him of the pickup truck and route was corroborated by the agents' own observations.
I stated on the record at the pretrial conference of September 5, 1978 that I was in accord with the above conclusions. At that juncture counsel for defendant Buckle requested that a tape of three phone conversations not presented to Judge Lasker but subsequently received by defendants during discovery be heard and considered by the court in support of defendants' motion to suppress. The three conversations were between (a) the informer and one "Joan" (de la Cova); (b) the informer and one "Jimmy" (McGrath); and (c) the informer and one "Scott" (Cooper).
It was urged by defendant's counsel that this tape contained the details of the planned trip to upstate New York, that such details were fully known to government agents when these telephone calls occurred at approximately 12:40 a.m. on January 31, 1978, and therefore that sufficient probable cause existed at that time to believe that the following day the truck would contain contraband. Hence it is contended that the search of the pickup truck the following evening was a planned warrantless search and that a search warrant for the truck should have been obtained during the 20 hour hiatus between the taping of the conversations and the search and seizure of the truck.
Contrary to defense counsel's representations that the "where," "when," "license plate number" and destination of the truck were on tape (Tr. 60), no such detailed information was discussed. In light of this, a short synopsis is in order.
In the first conversation, Joan asks the informer if he is looking for Jack. After the informer says that he is, Joan reveals that Jack is at Scott's waiting for him. Joan continues that at midnight Jack said he was at Scott's, waiting for the informer to come in. The informer says he will give Jack a buzz down there later.
During the second conversation the informer asks Jimmy if he has "brought that shit up there today" and Jimmy responds in the negative but says he has found a "good place to stash it down here." The informer asks Jimmy if he is going to "bring some good ones down for me tomorrow" and Jimmy answers in the affirmative. The conversation continues with the informer indicating that he wants to "check them out," wants "twenty-five good ones," and wants to "go through them." Jimmy says he will mark off five or six for the informer, or whatever the informer wants to keep away from Scotty. The conversation continues in discussing quantity, picking through them,
and where they should be put. Jimmy indicates that he was lucky that he got everything that was in the truck, and that there is not enough room to unload and go through it. The informer indicates that if he continues to give his people the good ones they will not take the "shitty ones" in the end. He continues that if he tells them that the rest are not "that good" maybe they will look through the "bad ones" and Jimmy can move them out instead. He reminds Jimmy that they could make "more bucks" on the "better ones." Jimmy responds that all they need is a place for the informer to look through them. When asked what time he is going upstate tomorrow Jimmy indicates that he has to wait for Jack to "finish this business down here," answers affirmatively that Jack is going with him and states that he told Jack to get finished early. Jimmy continues that he will be "shooting right out" and answers "exactly" when the informer asks if he is going to "shoot up there tomorrow morning and then tomorrow afternoon some time we'll get together and take care o' all o' this shit." The informer asks Jimmy if he hopes to leave at nine or ten and Jimmy says that he hopes to. Jimmy states that he will call the informer or try and reach him before he leaves for Jack's.
In the third conversation Scott indicates to the informer that Jack is present at Scott's house and that Sal is looking for the informer concerning something important. Scott puts Jack on the phone who states that he has been "hanging out" for a couple of hours waiting for the informer. The informer replies that he did not know Jack would even be down here and that he just called Joan to see if Jimmy got up there. Jack retorts that Jimmy "fucked it up" and expresses his dissatisfaction because "those guys" are too "loose," "dumb," and "unprofessional" and do not run a tight organization. The informer states that he is not happy due to too many loose ends and Jack agrees, noting that he and Scotty were talking about how "we should approach this thing" and might be able to squeeze more out of them and make a "couple of extra bucks." The informer says they are being cheap and Jack agrees again, noting that they did not sell "any for a week," and that he kept "holding back." Then he refers to when he "sold that bunch," there is background noise, and Jack apologizes. The informer asks Jack if he is leaving tonight or will be in town; Jack says he is remaining and will go back tomorrow. The informer asks Jack if he will see Jack in a little while at his "man's," Jack answers yes and asks if the informer wants Jack to wait for him. They agree to meet at the "kid's" house on Crosby Street. Jack asks the informer how long he will be and the informer replies not more than 45 minutes. They further discuss where to meet and note the hour as 1:10 a.m. The informer states that the kid might be out, determines that Jack has the keys to the kid's house, and it is resolved that they will meet there and talk as soon as the informer can come over.
It is clear from the tapes that by no stretch of the imagination are the details of the trip to Hurley to pick up the marijuana revealed. There is reference to a "truck" and to "Jimmy" and "Jack" going "upstate." However, there is an utter void of specific information relating to a description of the truck for which counsel so strenuously argues a warrant should have been gotten. There is no reference to a license plate number, or model or year or location of the "truck" to be used. In short, while the tape does corroborate what the informer revealed to DEA a few hours previously concerning the existence of plans for the next day's excursion to obtain ...